Author Mansi Malik a fourth-year law student at Lovely Professional University, Phagwara, she is currently interning with Lexpeeps.in
“The article parlance about the definition of state under article 12 of the Indian Constitution
Indian Constitution was presented to the nation on 26th January 1950. Indian Constitution is known as the supreme law of the land, a bag of borrowings. It lays down the principle and framework of government. Indian Constitution lays down salient features, for instance, Codified law, The Largest constitution in the world, Amendment combination of rigid and flexible, Parliamentary form of government, and Federalism. Fundamental Rights are stated in part III from an article (12-35)
Fundamental Rights are inherited from America. Fundamental Rights are justiciable. Fundamental Rights uphold Equality, Dignity, and Unity of Nation. It prevents Despotic rule in the country.
Definition under Article 12
Article 12 defined the term state (only) that applies to article 12-35 of the Indian Constitution. It includes: –
- Executive and Legislative of Union
- Executive and Legislative of State
- All Local Authorities defined under section 3(31) of General Clause Act Example- Municipalities, Panchayats, District Board
- All Other Authorities Example- LIC, ONGC, IFC, and Electricity Board
The Supreme Court in one of his landmark judgments held that all agencies even Private Bodies fall under the Meaning of state.
Issue Arose in Article 12
The Issue raised in article 12 was what is included in other authorities and Landmark Judgements
- The University of Madras v. Shantabai AIR 1954 – Supreme Court held that the university formed under Madras Act, falls under the definition of the state. Court laid down the Latin term EJUSDEM GENERIS means (of the same kind). It was held that the Preceding government is sovereign, government, and parliament, government, and state legislature and local authorities.
- Ujjambai v. The State of UP– Supreme court has overruled the above decision and held that the term ejusdem generis approach is restricted. and also held that article 12 does not drive any common generis among three preceding authorities.
- Electricity Board of Rajasthan v. Mohanlal – Supreme court formulated a new idea and said if the body is created by statute (Law) in the Indian Constitution, it will fall under article 12. Apex court also held that the body doesn’t need to be sovereign and perform a governmental function. It was held that all universities fall under a state.
Now the question raised that body created by law but created for any commercial purpose whether that will fall under the definition of a state.
- Sukhdev v. Bhagat Ram – Supreme court held that statutory bodies like LIC, ONGC, and IFC that are set up under special statutes are stated under article 12.
- R.D Shetty v. IAA AIR 1979 – Issues raised that International Airport Authority formulated from Airport Authority under Parliamentary Act falls under the definition of the state. Although Parliament has the authority/ power to appoint the chairman, other members, the entire capital amount for the establishment of IAA was invested by the central government. The Supreme Court held that even if private bodies exist but if the usual degree of control is within the government. And the government has extraordinary financial assistance, therefore such an instrument/ agency (Private Bodies will fall under the definition of state under article 12 of the Indian Constitution).
- Som Prakash v. Bhagat Ram– Supreme court held that Bharat Petroleum that is incorporated under the Companies Act will fall under the definition of state supreme court laid down five criteria to check whether a Body or an Authority is a state or not. Financial Resources shall be a chief funding source, Functional Character should be governmental, Plenary control shall reside with government, Prior History of the same authority being carried out by the government and made over the new body, some element must be of authority/ command.
- Ajay Hasia v. Khalid Mujid AIR 1981- Supreme court laid down the determining test and held that determining test emphasizes that the body is acting as an agency of the state. it was held that Entire share capital shall be held by the government, Deep and pervasive control shall be by the government, perform the function of public importance, Status of monopoly enjoys, and Government department is transferred to that cooperation.
Whether Judiciary Falls under the Definition of State
- Prem Chand Garg v. Excise Commissioner – The Hon’ble Supreme Court held that if State is exercising rulemaking power. Then it will fall under the definition of state under article 12 in the Indian Constitution.
- A.R Antulay v. R.S Nayak– Seven Constitutional benches of supreme court laid down the landmark observation, and held that court cannot issue any direction that abridges/ violates any fundamental rights. And laid down a remark judgment that if the court is performing Non- Judicial function then it will fall under the definition of state under article 12 of the Indian Constitution. And if the court is performing the judicial function it will not fall under the definition of state under article 12 of the Indian Constitution.
- L. Chandra Kumar v. Union of India AIR 1997 SC 1125- Supreme court held that no writ proceeding can be entertained if the court does not have proper jurisdiction.
- Keshvananda Bharti case (Mathew J) – Supreme court held that definition of state given under part III does not apply to other parts of the Constitution. And the definition given under article36 does not apply to part III.
Whether Article 12 is Inclusive or Exhaustive
- “The State” includes the Executive and the Legislative of the union, Executive and Legislative of states, local authorities, and other authorities within the territory of India.
- Bidi Supply Co. v Union of India AIR 1956 – Supreme court held that the Income-tax department falls under the definition of the state.
- According to J. Bhagwati, it was held that article 12 cannot be stretched, and not every authority can be brought under the definition of state under the Indian Constitution and also held that NCERT DOES NOT FALL UNDER ARTICLE 12.
Article 12 Relationship with Fundamental Rights
- The legal advisor of the committee has enhanced the article 12 “STATE” in part III from article 12-35 of the Indian Constitution. Because the state can enforce its dominant power and violate the fundamental rights of the citizens therefore to control their dominating power the state has been defined under the Indian Constitution. If Universities, LIC, IFC, District Boards, Electricity Board, Municipalities, etc. If it violates/ abridges the fundamental rights of any citizen or non-citizen guaranteed under article 12- 35 can move to court Under article 32 to Supreme court and article 226 to High court.
- NCERT, Co-operative banks are courts if performing judicial functions cannot be considered under the definition of state article 12 of the Indian Constitution.
- Fundamental rights are available against state
Indian constitution was constituted by legal advisor B.N RAO, DR B.R Ambedkar, the ideology of state was ransacked from USA Article 12-35 Part III which lays down the definition of state under the Constitution. Its parlance about the definition of state and whether the article 12 is restricted or not, it also parlance about the Body, agencies and other co-operative societies, The Income- Tax, Municipalities falls under the definition of state or not Article 12 definition of the state is only applicable to part III of the Indian Constitution. And Article 36 where the definition of a state is provided does not apply to the Fundamental Rights.
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